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Deemed Consent and Organ Donation in Wales

In early July the passage of the Human Transplantation (Wales) Bill through the National Assembly made Wales the first nation in the UK to adopt a presumed (or deemed) consent system for organ donation. On September 1 First Minister Carwyn Jones performed the official sealing of the Bill, which will now come into effect on the December 1 2015. Presumed consent means that rather than having to formally register on the UK’s Organ Donor Register, it will be assumed, unless otherwise indicated, that people over the age of 18 (who have been resident in Wales for more than 12 months) wish to donate their organs following their death. The significance of this piece of legislation was, perhaps, captured best by the British Medical Association’s Welsh Secretary Dr Richard Lewis when he claimed that the bill was the most important legal development in Wales since the establishment of the laws of Hywel Da in the 10th century! The Human Transplantation (Wales) Bill should undoubtedly be celebrated: it will lead to far more people being on the Organ Donor Register in Wales (as presumed consent systems have in other countries where they have been introduced), and it will save lives. The historic significance of the bill, however, lies not only in the lifesaving difference it will make, but in fact that it is the most discussed aspect of a broader shift in systems of government in Wales and the UK. This shift is characterised by the increasing use of psychological insights about the nature of human behaviour within the design of public policy. Commonly referred to as “nudge” policies, these new ways of governing are based on the principles of soft paternalism, or the idea that governments should use policies to make it easier for people in act in ways that support their own, and the broader public’s, best interests.

Nudge policies are clearly in vogue. In the UK, the New Labour administration became interested in the ideas of soft paternalism during the early years of Tony Blair’s second term. It has, of course, been the Coalition Government that has most eagerly sought to deploy nudging tactics. In August 2008 David Cameron included Richard Thaler and Cass Sunstein’s 2008 volume Nudge: Improving Decisions about Health, Wealth and Happiness (essentially the bible of nudge) on an official list of recommended summer reading for Tory MPs. Since coming to power, the Coalition Government has established the Behavioural Insights Team (most commonly referred to as the “Nudge Unit”) in Whitehall. This unit supports the development and application of soft paternalist policies in various policy arenas. The Behavioural Insights Team has already played a role in developing new initiatives in areas as diverse as public health, fraud prevention, energy use, and charitable giving. The impacts of nudge policies are not restricted to the UK. In France, the government’s Centre d’analyse stratégique has been drawing on the principles of nudge to inform the development of energy policy. In Australia the Public Service Commission has been promoting the value of soft paternalism within a range of policy areas including water resource management. The government of Singapore has been deploying nudging tactics within the design of transport policy. Meanwhile, in the US, the Obama administration actually appointed the co-author of the book Nudge, Cass Sunstein, to head the Office of Information and Regulatory Affairs. The US government is now exploring the possibility of establishing its own Nudge Unit.

In order to appreciate the implications of these new policy developments it is important to understand the nature of a nudge. Nudge policies are actually derived from a particular branch of economics know as behavioural economics. Behavioural economists argue, in contrast to conventional economic theory, that human behaviour is not only based on rational contemplation, but also on a rather strong dose of irrational intuition. To put things another way, behavioural economists focus less on the idealised notion of Homo Economicus, and instead adopt a Homo Simpson model of human behaviour. There are, of course, many good reasons why we do not act rationally. First of all humans tend to favour short-term gain over long-term loss. This is probably why we seem so reluctant to act on issues such as climate change despite the compelling evidence of its near future consequences. Second, we rarely have either the available information or necessary time to make the decisions that are in our (financial) best interests. This is why people stay on unfavourable energy tariffs or fail to save effectively for their retirement. Third, people are motivated at least as much by emotion, desire, and pleasure as they are by the careful consideration of their best options. This is why levels of personal debt and obesity are both on the rise. What nudge suggests is that it may be possible to change subtle aspects of the choice environments that surround our decisions, to ensure that people can live longer, healthier, more financially secure, and environmentally sustainable lives. If we return to the example of organ donation we can see how nudge policies apply these insights to human behaviour.

Despite surveys revealing that a majority of people express a preference to donate their organs after death, few actually register on formal organ donation registers. The reasons for this are complex, but they clearly are related to the fact that people rationally understand the importance of organ donation, but at an emotional level don’t really like to think of death, let alone specify which organs and tissues can be removed from their bodies. When adopting a presumed consent system, governments remove the psychological and practical barriers that exist to organ donor registration: they assume that you want to donate unless you opt out. The opt-out clause is an important part of soft paternalism. In order to ensure that personal liberty and choice is not eroded by such policies it is vitally important that people can opt out of such systems should they wish to do so.

Beyond organ donation, we can now find nudge-type policies in a range of policy areas. The default setting has been changed on company pension schemes in the UK so now it is assumed that employees want to enrol. There are also new plans to change the default setting for domestic access to Internet pornography, with households now having to opt in to getting access to such sites. But nudge policies are more than about simply resetting default options. You may have noticed that when making an appointment with your GP you are now asked to verbally repeat the date and time of your meeting. This new process has been instigated to try and kerb the costly problem of missed appointments, but it is not merely an exercise in remembering. Research has shown that in the act of publically stating the date and time of your next appointment people feel more emotionally committed to actually keeping it.

Despite appearing to promise much, caution is also required when advocating nudge policies. Many nudge policies are based on insights into the subconscious nature of human behaviour. Questions must thus always be raised about the extent to which people are made aware of the nudging activities they are subjected to and the extent to which they are given adequate opportunity to opt out of being nudged. Questions have also been raised about the long-term effectiveness of nudge policies. While nudges appear to be effective at shifting short-term behaviours, in the longer term it appears that addressing people’s values is vital to securing behaviour change. There are also real dangers that nudge policies can be disempowering to the people who are subject to them. After all, it is often difficult to know who sets behavioural defaults and how these people are to be held to account.

It appears that Wales is well placed to embrace the practices of nudge, while avoiding some of its potential dangers. At present, it appears that the Behavioural Insights Team in Whitehall is utilising nudge as a way of correcting unwanted human behaviours. We hope that in Wales there may be a real attempt to not only use nudges as a policy tool, but also to use the insights on which it is based to make people more aware of the psychological factors that determine their own behaviours. This form of Welsh nudge would see government not so much utilizing people’s psychological proclivities for policy ends, but also psychologically empowering people to make better decisions about their own futures.